Opinion
No. 04-15-00211-CR
03-30-2016
Carl C. ROSS, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR4661B
Honorable Mary D. Roman, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Jason Pulliam, Justice AFFIRMED
Carl C. Ross was convicted of aggravated robbery of a disabled person. On appeal, Ross raises two issues, arguing that the trial court erred in: (1) denying his motion to suppress the in-court identification of him because the identification was tainted by an impermissibly suggestive pretrial field identification, and (2) denying his motion for a directed verdict because the evidence was legally insufficient to support the trial court's finding that the complainant was a disabled person under the statutory definition of the term. We affirm the trial court's judgment.
BACKGROUND
Martin Covert is the complainant in this case. He was 58 years old at the time of trial. He was forced to retire from his job as a heavy equipment operator in 2009 due to an on-the-job accident in which he broke his back. Covert underwent back surgery but he is unable to work and receives occupational disability benefits from the Social Security Administration. Covert also has a handicap placard in his vehicle. On the morning of March 16, 2014, Covert stopped at a Bank of America branch to withdraw money from the ATM. Covert testified that he parked in front of the bank, went inside, and withdrew $100.00 from the ATM. He further testified that as he was leaving the lobby, two African-American males opened the door opposite him and hit him, knocking him to the floor. Covert stated that the men proceeded to kick and punch him and then took his wallet, which contained the $100.00 he withdrew as well as $60.00 he already had, from his front pocket. After the attack, Covert was able to get back to his truck and call the police; he then followed the two men, who were walking, from the bank parking lot to a home on the 1900 block of Providence Street.
Police officers arrived at the address provided by Covert and ultimately detained four suspects after conducting three sweeps of the property. Four individual show-up field identifications were conducted in which Covert received field identification instructions and viewed each suspect one at a time. Covert testified that it was about forty-five minutes between the time of the robbery and the first individual show-up. The first show-up was conducted at 9:56 a.m., the second was conducted at 10:00 a.m., the third at 10:05 a.m., and the fourth show-up in which Ross was identified was done at 10:29 a.m. The fourth show-up was delayed because Ross was not immediately found. Covert identified the first and fourth individuals, without hesitation, as the men who robbed him; the other two individuals were eliminated as suspects. Officers recovered money from Ross and the first individual in an amount consistent with the amount reported stolen.
Ross was charged with aggravated robbery of a disabled person. Ross filed a motion to suppress the in-court identification. The trial court denied the motion to suppress. After the State rested, Ross moved for a directed verdict, arguing that the State failed to prove the aggravating element that the victim was a disabled person. The trial court denied the motion. The trial court found Ross guilty of aggravated robbery and assessed punishment at 30 years' imprisonment.
ADMISSIBILITY OF IDENTIFICATION
In his first issue, Ross argues the trial court erred in failing to suppress Covert's in-court identification because it was influenced by an impermissibly suggestive pretrial field identification. See Gamboa v. State, 296 S.W.3d 574, 581 (Tex. Crim. App. 2009) (in-court identification is inadmissible when it has been tainted by an impermissibly suggestive pretrial identification); see also Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998) (same). In addressing this issue, the court must determine: "1) whether the out-of-court identification procedure was impermissibly suggestive; and, if suggestive, 2) whether that suggestive procedure gave rise to a substantial likelihood of irreparable misidentification." Connor v. State, 67 S.W.3d 192, 200 (Tex. Crim. App. 2001) (citing Simmons v. United States, 390 U.S. 377, 384 (1968)). In making this two-part determination, the court considers the totality of the circumstances surrounding the particular case and a determination of the reliability of the identification. Gamboa, 296 S.W.3d at 581-82; Loserth, 963 S.W.2d at 772. An appellate court applies a de novo standard in reviewing the trial court's legal determination of whether the reliability of an in-court identification has been undermined by an impermissibly suggestive pretrial identification procedure. Gamboa, 296 S.W.3d at 581; Santiago v. State, 425 S.W.3d 437, 440 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd). A. Impermissible Suggestiveness
Regarding the first prong used to determine whether an in-court identification is admissible, we note that although a particular identification procedure may be suggestive, it is not necessarily impermissibly so. See Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995). Show-up field identifications carry with them a certain degree of suggestiveness, but the inquiry focuses on whether the suggestiveness is so impermissible as to lead to misidentification. Perry v. New Hampshire, 132 S.Ct. 716, 724-25 (2012) (citing Neil v. Biggers, 409 U.S. 188, 199-201 (1972)). It must be determined whether the show-up field identification procedure "was so unnecessarily suggestive and conductive to irreparable mistaken identification that [the defendant] was denied due process of law" based on the totality of the circumstances. Neil, 409 U.S. at 196 (quoting Stovall v. Denno, 388 U.S. 293, 301-02 (1967)).
Here, Officer Francisco Gallegos, the police officer who escorted Covert to the show-up, testified about the procedure he used. Gallegos stated he advised Covert they were going to engage in one-on-one field identifications and he would give him instructions regarding the field identification procedure. Gallegos testified he followed standard procedure for one-on-one field identifications: he presented the field identification instructions form to Covert, read verbatim the instructions, made sure Covert understood the instructions, and both Gallegos and Covert signed the form. Gallegos followed this procedure for each individual identification.
Ross argues the 24-minute delay between his show-up and the other three show-ups necessarily caused the field identification to be impermissibly suggestive because Covert knew only one suspect had not been identified at the time Ross was shown to him. However, the delay is only part of the consideration, and we must examine the totality of the circumstances. The reason for the 24-minute delay was that Ross was concealing himself and the officers did not find him until a second sweep of the home. In total, less than two hours lapsed between the robbery and Ross's field identification. By conducting the field identification within this short period of time at the location where the suspects were found, Covert was able to use his memory while it was still fresh, and police officers could release any innocent suspects quickly. See Mendoza v. State, 443 S.W.3d 360, 363 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Furthermore, prior to each individual identification, Officer Gallegos had Covert sign a field identification instruction form which clearly stated Covert did not have to identify the person being shown to him. Covert stated on the form that he was able to identify Ross "by his face[,] his looks[,] and his buil[d]."
Considering the totality of the circumstances, we conclude the field identification was not impermissibly suggestive. B. Substantial Likelihood of Irreparable Misidentification
Although we have concluded the field identification was not impermissibly suggestive, we will nonetheless proceed to analyze the second prong used to determine the admissibility of an in-court identification. Under the second prong, the burden is on the appellant to show the impermissible suggestiveness of the field identification led to a "substantial likelihood of irreparable misidentification." Connor, 67 S.W.3d at 200. Reliability is the "linchpin" in determining admissibility of identification testimony. Barley, 906 S.W.2d at 34. In determining whether a show up presented a "substantial likelihood for irreparable misidentification," several non-exclusive factors are considered: (1) the witness' opportunity to view the criminal act; (2) the witness' degree of attention; (3) the accuracy of the suspect's description; (4) the level of certainty at the time of confrontation; and (5) the time between the crime and confrontation. Gamboa, 296 S.W.3d at 582 (citing Neil, 409 U.S. at 199).
Here, Covert was able to view the men who robbed him. Not only was he able to view Ross's face as he was being attacked, he was also able to view him when he followed Ross and his accomplice to the house where the field identifications eventually took place. Covert's level of attention was high as he was the victim of the attack and he testified he was "staring" Ross in the face during the attack, which lasted a couple of minutes. The descriptions Covert gave to the police at the time of the incident are unknown. However, Covert accurately identified Ross during his testimony as the taller, older individual who took his wallet. Further, during the show-up, Covert's level of certainty was such that he was able to identify Ross without hesitation "by his face[,] his looks[,] and his buil[d]." Lastly, the time between the robbery and the field identification was less than two hours. The video from the Bank of America ATM security camera had a time stamp showing the robbery taking place at approximately 9:04 a.m. and the field identification form on which Ross was identified is time-stamped showing the procedure took place at 10:29 a.m.
Based on the analysis of the above factors, we conclude Covert's identification was reliable in that "no substantial risk of irreparable misidentification was created." Luna v. State, 268 S.W.3d 594, 608 (Tex. Crim. App. 2008). Accordingly, we overrule Ross's first issue.
DIRECTED VERDICT AND LEGAL SUFFICIENCY OF THE EVIDENCE
In his second issue, Ross challenges his aggravated robbery conviction by asserting the evidence was legally insufficient to establish the necessary element that Covert was a disabled person under the statute; therefore, the trial court erred in denying his motion for directed verdict of acquittal. When a defendant challenges the legal sufficiency of the evidence to support an element of the offense, we determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found that essential element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Ramsey v. State, 473 S.W.3d 805, 808 (Tex. Crim. App. 2015). "In conducting a legal sufficiency review, we defer to the [trier of fact]'s assessment of the credibility of the witnesses and the weight to be given to their testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010); De La Fuente v. State, 432 S.W.3d 415, 422 (Tex. App.—San Antonio 2014, pet. ref'd).
Section 29.02 of the Texas Penal Code provides that a person commits robbery "if, in the course of committing theft . . . and with intent to obtain or maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another . . . ." TEX. PENAL CODE ANN. § 29.02(a)(1) (West 2011). A person commits theft if he "unlawfully appropriates property with intent to deprive the owner of property." Id. § 31.03(a) (West Supp. 2015). A person commits aggravated robbery if he commits robbery and causes bodily injury to a disabled person. Id. § 29.03(a)(3)(B) (West 2011). Section 29.03 defines a disabled person as "an individual with a mental, physical, or developmental disability who is substantially unable to protect himself from harm." Id. § 29.03(c).
In this case, the evidence shows that Ross intentionally caused bodily injury to Covert while in the course of committing theft with intent to obtain control of the money Covert withdrew from the ATM. Covert testified Ross and another man attacked him and took his wallet, which had the money he withdrew as well as money he already had with him. This illustrates Ross's intent to deprive Covert of his property and obtain it for himself. Covert further testified Ross was one of the men punching and kicking him during the course of the robbery. Covert stated he suffered scuffs and bruising as well as aggravation to his surgically-repaired back. He refused to go to the hospital, however, because he "did not see a need for it." Photos of Covert taken by officers after the robbery show him with visible scrapes and bruises on his body.
Ross argues the evidence was legally insufficient to prove that Covert was a disabled person under Section 29.03 of the Texas Penal Code. The evidence was undisputed that Covert is not a person who has the normal and full use of his body; therefore, the relevant inquiry is whether the evidence was sufficient to prove that Covert was "substantially unable to protect himself from harm." Carr v. State, No. 07-99-00213-CR, 1999 WL 989605, at *2 (Tex. App.—Amarillo Oct. 25, 1999, no pet.) (mem. op., not designated for publication). The court in Carr held "the evidence must have been sufficient to show that [the victim]'s disability 'severely limited' his ability to protect himself from harm." Id. at *3.
There is evidence showing Covert was physically impaired at the time of the robbery. Covert had reconstructive spinal surgery to repair his broken back and currently receives Social Security disability benefits. He has a handicap placard in his vehicle. He cannot run, jump, or swim. He wears a back brace for support and is unable to pick things up off the floor or lift objects that weigh more than twenty pounds. Furthermore, Covert testified the reason he used the ATM in the bank's lobby rather than the outside ATM was because he has trouble reaching down to use the machine. Ross concedes that Covert was physically impaired, but contends his impairment did not render him substantially unable to defend himself because Covert fought back against the two robbers—Covert was able to punch one of his attackers in the groin a few times. Ross argues Covert "was defeated because it was a two-on-one contest, not because of his impairment." However, due to his back injury and subsequent surgery, Covert does not have the strength or the mobility to defend himself as a fully abled person could and receives recognized benefits provided to one with a disability. The security video from the ATM shows Covert lying flat on his back with his arms and legs flailing. While Covert may have done "all he could" to defend himself, his physical impairments "severely limited" his ability to do so. See id. Accordingly, the evidence is legally sufficient to establish that Covert was disabled at the time of the robbery.
Having reviewed all of the evidence in the light most favorable to the verdict, we conclude the factfinder rationally could have found each element of the offense beyond a reasonable doubt. As such, the evidence is sufficient to support Ross's conviction for aggravated robbery. We overrule Ross's second issue.
CONCLUSION
Based on the foregoing reasons, the judgment of the trial court is affirmed.
Rebeca C. Martinez, Justice Do not publish